United States v. Hubert Hall Irvin, Jr.

KILKENNY, Circuit Judge

(dissenting) :

I dissent. The fact that appellant did not cooperate with his attorney does not establish that he was unable to assist in *971 his own defense. One accused of bank robbery, such as appellant, when faced with the adverse testimony of at least four eyewitnesses, might have excellent reasons for not responding to an attorney’s questions. For example, he might know that he had no defense. In such case, why should he waste his time answering a lawyer’s questions ? I suggest that the court’s questions, in most instances, were precise and to the point, rather than “perfunctory” as suggested by the majority. So were appellant’s responses. Here, it is obvious the trial judge felt that there was no merit whatsoever in the contention that appellant was unable to assist in his own defense and that such a contention was frivolous within the doctrine stated in Meador v. United States, 332 F.2d 935 (9th Cir. 1964). The accused’s mental competency under § 4244 is to be determined by the trial court and its determination is not to be set aside on review unless clearly arbitrary or unwarranted. Hall v. United States, 410 F.2d 653, 658 (4th Cir. 1969), cert, denied, 396 U.S. 970 , 90 S.Ct. 455 , 24 L.Ed.2d 436 (1969); In re Harmon, 425 F.2d 916, 918 (1st Cir. 1970); cf. United States v. Taylor, 437 F.2d 371 (4th Cir. 1971). At all times, we must keep in mind that the determination was made by the trial judge only after a face to face examination and observation of appellant. It has been said that the human face is the index to character and that facial expressions cross all language barriers. The facial expressions of a witness may convey much more to the trier of the facts than do the spoken words. We should not substitute our judgment for that of the trial judge who was eyeball to eyeball with the appellant, not only during the hearing, but, also throughout the two day trial.

Of great significance, in my opinion, is the fact that there is no showing whatsoever that appellant did not actively assist his attorney in the course of the trial, during which period the trial judge again had an opportunity to see and observe the actions of the appellant.

Finally, appellant’s numerous letters to the court, begging for a modification of the sentence, clearly demonstrate that appellant was fully aware of the nature of the charges against him and obviously capable of assisting his counsel during the trial. Each letter was treated as a motion for a modification of the sentence and was denied by the judge. The letters to the judge, in my view, prove beyond any question that appellant was sufficiently competent to stand trial. On this type of record, we should examine all of the evidence which was before the trial court, including the letters aforementioned. These letters clearly establish that even though the initial hearing might be viewed as “perfunctory”, the judge’s finding was correct and his failure to order a psychiatric examination was harmless under Rule 52(a), F.R.Crim.P. If these letters were before the court at the time of the initial hearing, I venture to say we would not have this issue before us.

Appellant’s other contentions being without merit, the judgment of conviction should be affirmed.